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Lead Litigation Conference 2013
November 14-15, 2013
The
Presented by:
Kelly J. Mikullitz, Esq.O’Connell & Aronowitz54 State StreetAlbany, NY 12207518-462-5601www.oalaw.com
of Negotiating a Lead Case
Determining Value
Determining Value
•Notice
•Improper or Delayed Abatements
•“Problem” Landlord
Strength of Liability
Determining Value
•Blood lead level
•Chelation
•Exposure
•School and Medicals
•Expert reports
Damages
Determining Value
•Preexisting injuries
•Family history
•Child Protective Services
Confounding Factors
Determining Value
•Convictions
•Substance abuse
•School
•Employment
Problem Plaintiffs
Determining Value
• Representing Multiple Plaintiffs
• Representing Multiple Defendants
Other Considerations Affecting Value
Selecting Your Adversary
Selecting your adversary
• Prior relationships
• Negotiation style
• Knowledge / Experience
Insurance Adjusters vs. Defense Attorney
Selecting Your Approach
Selecting your approach
• Informal conversations /meetings
• Formal demands or offers
Formal vs. Informal
Insurance Coverage Concerns
Insurance Coverage Concerns
• Obtain Insurance Policy
• Definitions
• Anti-stacking language
• Verbal or written amendments
Know the Insurance Coverage FIRST!
Final Preparation
Final Preparation
• Determine settlement goals
• Obtain authority
Final Preparation
Settlement Discussions
Settlement Discussions
• Maintain credibility
• Discuss liability / injuries
• Respond to adversary’s criticisms
• Discuss risks to Defendant
• Elicit value
• Admit confounding factors
• Make concessions
Negotiations
Settlement Discussions
• Document everything• Every discussion• Every question• Every demand• Every offer
Documentation
Settlement Discussions
• Agree to conditions of settlement early on• Liens• Confidentiality• Structured settlements
Conditions
Settlement Discussions
• Be reasonable
• No ultimatums
• Request that demand(s) be conveyed to defendant
• Document everything
Demands
Settlement Discussions
• Few cases settle in one negotiation
• Keep your adversary’s attention
• Settlement attempts and delays
Have Patience
Settlement Offers
Settlement Offers
• Be patient
• Do not shut down negotiations
• React appropriately
• Document efforts to resolve
• Continue to litigate
Low Offers or No Offers
Mediation
Mediation
• Fresh set of eyes• Jury perspective• Success rate• Cost• Confidential
Benefits
Finalize Settlement
Finalize Settlement
• Immediately document settlement amounts / conditions
• Confirming letters
Finalizing
Defense Perspective
The Law Offices of Frank F. Daily, P.A.11350 McCormick Road
Executive Plaza III, Suite 704Hunt Valley, Maryland 21031
Defense Perspective
Evaluation
Negotiation
Should we settle?
• How much? • When?
Considerations • Liability • Damages • Coverage • Other factors
BUT FIRST ...
• Who's the boss?
• Remember who is the client!
• Split allegiance
• Allstate Insurance Co. v. Campbell, 334 Md. 381, 639 A.2nd 652 (1993).
• What is best for the client?
Liability Considerations• Very
bad
• Very good
Damage Considerations
• lead levels • educational issues • occupational issues
Coverage Issues • Amount - enough to cover verdict?
• Erosion/Impairment of policy
• "Gaps" in Coverage
• Penn National Mutual Casualty Insurance Co. v. Roberts, et al., 668 F.3rd 106 (2012)
• Other Litigation - More Erosion?
• Notice to Client and Input from client
Settlement Amounts
• Appropriate figure?• Implications of settlement
Large Settlement
Small Settlement
Is it all about the money?No .....
• Terms/Type of Release
• Confidentiality • Structure
• Liens (Beware!)
• Discuss terms with opposing counsel!
The Speakers
Kelly MikullitzO’Connell & Aronowitz
Frank F. DailyLaw Office of Frank Daily, P.A.
Questions
Kelly Mikullitz O'Connell & Aronowitz 518.462.5601 [email protected]
Frank Daily Law Offices of Frank F. Daily P.A 410.584.9443 [email protected]
Speaker Contact Info